Information Note on the Court’s case-law 47
November 2002
Yousef v. the Netherlands - 33711/96
Judgment 5.11.2002 [Section II]
Article 8
Article 8-1
Respect for family life
Refusal to allow natural father to recognise child: no violation
Facts: The applicant and R. had a daughter, S., born in 1987. The applicant moved in with R. and S. a few months later and lived with them for about a year. He then went to the Middle East for around two and a half years, during which time his contact with R. and S. was limited to some letters. In 1993, R., who had a terminal illness, made a will in which she expressed the wish that after her death her brother should have guardianship of S. The applicant unsuccessfully brought proceedings for an order that R. give him permission to recognise S. Following R.'s death, S. was placed with another of R.'s brothers and his family, in accordance with a supplementary will. The applicant saw S. every three weeks and was later granted a right of access. However, his request that a deed of recognition be drawn up and registered was refused and his appeals were dismissed. The Supreme Court considered that it was not in S.'s best interests to be removed from the family with which she lived, which would be the result of allowing the applicant to recognise her.
Law: Article 8 – The applicant's biological paternity was not in dispute and he had lived with S. and R. for a certain period after the birth. Moreover, he had continued to have contacts with S. after R.'s death. There was therefore “family life” and the denial of the right to recognise S. constituted an interference. The interference was in accordance with national law, as interpreted by the domestic courts, and pursued the legitimate aim of protecting “the rights and freedoms of others”. As to the necessity of the interference, while the result of the decisions of the domestic courts was that no legal family tie between the applicant and his child was recognised, they did not totally deprive him of family life with her, since he continued to have access to her pursuant to court decisions. Thus, it could not be said that his Article 8 rights were disregarded. The courts considered that the changes involved in allowing the applicant to recognise S. – namely, that she would go and live with him and automatically change her surname – would be detrimental to her interests. In the balancing of interests, those of the child must prevail and in the present case there was no indication that the domestic courts had failed to take the applicant's rights sufficiently into account or decided in an arbitrary manner.
Conclusion: no violation (unanimously).
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
Click here for the Case-Law Information Notes
Full & Egal Universal Law Academy